United States v. Duran-Ruiz , 197 F. App'x 356 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 7, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-11057
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN DURAN-RUIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-00035-1
--------------------
Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit
Judges.
PER CURIUM:*
Defendant-appellant Benjamin Duran-Ruiz appeals his
sentence of 135 months of incarceration, a five year term
of supervised release, and a $100.00 special assessment.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Pursuant to a plea agreement, Duran-Ruiz pleaded guilty
to count two of his indictment, possession of more than
one kilogram of heroin with intent to distribute.
His presentence report (PSR) reflected post-arrest
statements made by defendant to DEA agents and task force
officers, as well as information given to the DEA by a
confidential source. None of these facts were alleged in
the indictment, stipulated to in the factual resume, or
admitted in his guilty plea. The PSR recommended his
base offense level be set at 38 under the United States
Sentencing Guidelines (USSG). It further recommended
that this base offense level be reduced because (1)
defendant met certain statutory criteria under the USSG;
and (2) defendant accepted responsibility. After these
adjustments, his total offense level was 33, which
carried a sentence range of 135-168 months. The court
sentenced defendant to 135 months of imprisonment, five
years of supervised release, and a $100 special
assessment.
The district court then imposed an alternative
sentence “...made necessary by the possibility that the
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federal sentencing guidelines may hereafter be declared
unconstitutional or otherwise inoperative and, as a
consequence, the primary judgment in this case reversed
on appeal or vacated and set aside pursuant to Title 28,
United States Code § 2255.” The judge provided that
“[t]he sentence is imposed pursuant to Title 18, United
States Code § 3553(a), taking the guidelines issued by
the United States Sentencing Commission pursuant to Title
28, United States Code § 994(a), as advisory only.” This
alternative sentence provided for ten years of
imprisonment, five years of supervised release, and a
special assessment of $100.
Defendant-appellant appeals on the following bases:
(1) his sentence violates Blakely v. Washington,
542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S.
220 (2005), in that it, in part, hinged on
evidence in the PSR that was not admitted by
defendant in his guilty plea nor decided by a
jury beyond a reasonable doubt;1 and
1
Defendant-appellant does not, in his appeal, address the
existence of the alternative sentence.
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(2) his sentence violates the Sixth Amendment’s
Confrontation Clause, as interpreted by Crawford
v. Washington, 541 U.S. 36 (2004), in that it
was based on the testimonial hearsay of DEA
agents and a confidential source contained in
his PSR.
As to the first basis of appeal, the Government
concedes that Blakely and Booker are applicable to the
instant case and also that the error incurred was not
harmless. Therefore, the issue for this Court is whether
the sentence should be vacated and remanded or instead
whether the alternative sentence should be imposed.
As to the second basis, defendant’s argument is
foreclosed by United States v. Navarro, 169 F.3d 228, 236
(5th Cir. 1999), which held that “the constitutional
right to confront witnesses does not apply to non-capital
sentencing proceedings.” Accordingly, we consider only
his first basis.
Analysis
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The limited, yet recent, case law from this Circuit
dictates that we vacate Duran-Ruiz’s sentence and remand
for resentencing.
In United State v. Adair, 436 F.3d 520 (5th Cir.
2006), the court sentenced the defendant under the then-
mandatory sentencing guidelines to 240 months
imprisonment. The court levied an alternative sentence
of fifty-one months “should the sentencing guidelines
later be found to be unconstitutional in their
entirety....” This Court vacated the defendant’s
sentence and remanded to the district court for
resentencing in accordance with Booker based on the
similar case of United States v. Walters, 418 F.3d 461
(5th Cir. 2005). In both Adair and Walters, this Court
found that the condition for the alternative sentence,
that the sentencing guidelines be declared
unconstitutional in their entirety, did not occur. As
explained in those cases, Booker did not declare the
guidelines unconstitutional in toto but instead merely
rendered them advisory. Adair 436 F.3d at 528. These
cases suggest that if the alternative sentence lacked the
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condition that the guidelines be declared
unconstitutional in their entirety, then the alternative
sentence could be imposed, assuming any other conditions
are met.
However, United States v. Story, 439 F.3d 226 (5th
Cir. 2006), dispels the implications of both Walters and
Adair. In Story, the judge orally imposed two alternative
sentences. The first is the only one applicable. In the
relevant alternative sentence, the court imposed an
identical incarceration time as that provided in the
Guideline-governed sentence, in the event the Guidelines
“are declared to be unconstitutional.” Story, 439 F.3d
at 229. The judge did not mention the scope of the
declaration of unconstitutionality of the Guidelines,
i.e., it did not predicate the alternative sentence on a
declaration of unconstitutionality of the Guidelines in
their entirety, as did the judge in Adair and Walters.
In Story, the government argued that the case should
not be remanded for resentencing because the defendant’s
sentence fit within the first alternative sentence
pronounced by the district court. Stated differently,
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the government argued the condition was met because, it
alleged, Booker declared the Guidelines, to some extent,
unconstitutional. This court disagreed. Referencing
Adair, we stated, “[i]n a recent case2 in which a district
judge imposed similarly worded alternative sentences, we
found that the trigger for the first alternative
sentence, the Guidelines being declared unconstitutional
in their entirety, did not occur. Likewise, this trigger
did not occur to activate Story’s first alternative
sentence.” Id. at 233. (Internal citation omitted).
Although the district judge in Story predicated the
alternative sentence on the Guidelines being declared
unconstitutional and did not mention the scope of the
unconstitutionality, the Court still found the trigger
of the alternative sentence not met.
Conclusion
Because of this court’s clarification of Adair in the
Story case, it is evident that the position of the Fifth
Circuit is that alternative sentences predicated on a
declaration of the unconstitutionality of the Sentencing
2
The court here is referring to Adair.
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Guidelines should not be imposed. Therefore, we vacate
the defendant’s sentence and remand the case for
resentencing.
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